Call to recognise – and regulate – different marriages

‘The failure of the state to recognise religious marriages is a major omission in a country that boasts a Constitution that promotes diversity. In particular, the failure to have laws recognising – and regulating – religious marriages leaves women, in particular, vulnerable.’ UCT’s Waheeda Amien, an associate professor in law, says that to date – apart from civil marriages – only customary marriages and same-sex unions are legally recognised. ‘Laws have not been passed to recognise religious marriages as legally valid.’ In her analysis on The Conversation site, Amien notes the state’s failure to legally recognise Muslim marriages was challenged in the Western Cape High Court in 2018. The court ordered the state to prepare, initiate, enact and bring into operation legislation to recognise and regulate Muslim marriages by August 2020. However, that judgment is being appealed in the Constitutional Court. Amien believes it is not good enough for the state to only recognise different forms of marriages. ‘It needs to also regulate them. By regulating features that are specific to a religious marriage – such as polygyny and divorce – substantive equality can be promoted. Each type of marriage, the way in which it is practised within communities, and the consequences for especially marginalised members of those communities such as women, must be considered.’ She adds: ‘If the state is serious about affording sufficient protection to marginalised people in society – including women in minority religious communities – it should go beyond simply recognising all forms of marriages. It must also regulate them – in a nuanced way.’ Amien suggests the state could do so by enacting separate legislation to recognise and regulate a particular type of marriage, such as the Muslim Marriages Bill. It could also enact an omnibus legislation that contains different chapters, which recognise and regulate the specific features of different types of marriages.’ She says the Muslim Marriages Bill (approved by Cabinet in 2010 but never passed into law) could be incorporated into the ‘omnibus’ legislation – proposed in a paper by the Law Reform Commission – as a chapter. And existing legislation – such as the Recognition of Customary Marriages Act, the Civil Union Act and the Marriage Act – could be amended where necessary and included as separate chapters.

Full analysis on The Conversation site